August 1, 2005

Opponents of Supreme Court elections — among whom I probably fall — will have to come up with better arguments than "people are too stupid" if they expect to prevail. And if the people really are too stupid to take part in these decisions, then what about all those interest groups that claim to represent the people?

I was much more negative toward Davis's proposal in my NYT review of the same book:

Where would the candidates come from? Davis suggests the president could nominate a slate of candidates, and he imagines the Senate holding hearings and issuing reports. But what would the campaigns look like? And what would stop these elections from degenerating into referendums on, say, abortion?

One searches vainly in the pages of this book for any discussion of the changes elections might work on the Court's own conception of its role. It is already accused of being too political. Currently, at least there is an effort to appoint highly qualified jurists who will uphold the rule of law. Even if political ideology underlies the process, the nominee is still generally someone steeped in the legal culture who is going to profess faith in legal principles. Electing justices would not just change the selection phase, it would reshape how justices thought about their role. What would happen to the culture of law once the justices had their own constituents?

UPDATE: I don't know if you've noticed that I've been tinkering with the subheading to this blog and have replaced the old description of the contents, first with a quote from Slate and then, just this morning, with an old quote from Jonah Goldberg. Now, it seems Glenn Reynolds is making a big pitch to get a quote up there. I'm sorely tempted! What do you think?

17 comments:

This puts me in mind of Bruce Ackerman's We the People. To oversimplify, Ackerman says that twice (once after the Civil War and once during the New Deal) the Supreme Court has basically thrown out the old Constitution and enacted a new one by reinterpreting the words on the paper.

But, he says, this was good--because the old Constitution had ceased to be useful, and The People supported the change.

Electing Justices would seem to institutionalize this process. The People could vote for someone who said "affirmative action 'denies equal protection'" or "capital punishment is 'cruel and unusual'."

I agree with Ann. I agree with EddieP that there should be a mandantory retirement age.More than that, the Justices should have to undergo a yearly physical as the President does to determine their continued fitness to serve.

In Texas, a little known lawyer very nearly got on the Supreme Court for no reason other than his name was Gene Kelley. For many years, we had a State Treasurer named Jesse James. In both cases, as far as I know, the names were the primary qualifications.

Most people don't understand what judges are supposed to do and have no business voting on them. The Texas election of judges dates back to an effort to "set right" what Texans perceived as the injustice of Reconstruction.

"Anyone who thinks that judicial elections are a good idea should check out campaigns for the Supreme Courts of Texas and Ohio."

The former Chief Justice Roy Moore of Alabama was elected to that office and will also, if he chooses to run, be our next governor as well. (I'm a Republican, and horrified by the prospect, but I'm sure that he would win by a pretty large margin.)

The idea of electing judges is not so outrageous as some have suggested. Most state have some form of election for judges - retention, non-partisan, or partisan. California, for instance, has retention elections, and went for more than half a century without turning out any statewide judges. So the idea that any form of election will authomatically disrupt the judiciary is specious.

Texas, in contrast, has partisan elections. Despite that, the Texas judiciary was extremely stable from the adoption of partisan elections in 1876 until 25 years ago, when Texas plaintiffs' lawyers decided to run candidates in the Democratic primary in order to shift the direction of Texas law. In response, insurance companies and defense lawyers joined forces with a then little-named political consultant named Karl Rove to put judges less friendly to plaintiffs' lawyers on the bench. 60 Minutes ran an aggressive expose of the plaintiffs' lawyers-Democratic judges connection, and Republicans began a decade-long march to dominance of the Texas bench.

Electing judges forces judges to defend their decisions, either directly or (in some states) by proxy. And part of the process of defending their seats (or seeking to take seats) is about qualifications, in addition to legal and political ideology. In essence, electing judges ensures that the consent of the governed is required for judicial lawmaking, as well as for the legislative kind.

In a world in which judges did not legislate, such a check on their power would not be necessary. As experience has shown, judges do legislate. They claim to do so under the guise of interpretation, but no serious scholar will claim that judges never make it up on the fly (e.g., Dred Scott v. Sandford).

I have worked on Texas Supreme Court campaigns and for the Court. In my experience, the candidates are civil, the discourse is generally conducted at a high level, and a significant number of the voters are well informed. And the results are generally pretty good, both in the quality of the judges and the quality of the jurisprudence.

Periodic retention elections, like California's, will allow voters to reject manifestly unqualified or extreme candidates. It may be conceiveable that Presidents and Senates might place such candidates in the lifetime sinecures of the Court. In the event such a person were placed on the Court, it would be advantageous to have an opportunity to remove him (or her).

David: The Supreme Court is different. And state judges don't get the respect federal judges do and it does have something to do with the selection method. Finally, there is no mechanism in place for a national election -- it would be a new procedure.

Are you sure that quote from Glenn is really an endorsement? It sounds a little like damning with faint praise. : )

It's people like Davis that make me think it's good that it's so hard to amend the constitution. It's people like O'Connor who make be wish it were easier.

The founders didn't like direct democracy, and the results of adopting more of it haven't been too impressive. Would we have senators like Schumer, Kennedy and Biden if they were elected by their state legislatures? Who knows?

Rather than electing justices, wouldn't it make for sense to put individual decisions up for a plebiscite but based on whether the decision should be taken out of the court's jurisdiction: "Shall the Supreme Court be permitted to strike down democratically enacted laws relating to same-sex marriage?"

To me the problem is that the court has taken it on itself to overrule democracy, and if we can't define the kind of society we live in with our votes, why vote? If I object to having to step over homeless people and being accosted by panhandlers every time I go downtown, shouldn't I be able to elect people who will do that?

Maybe a retention election would be useful. Should Justice Anthony Kennedy be retained as a justice of the Supreme Court? That would make removing a justice a rare event, but if they make a decision like Kelo, it could put some of them in jeopardy. Where there have been votes on gay marriage it has lost 70% to 30%. That might make justices less bold about getting too far out ahead of public consensus, which is as it should be.

The test for me is whether Brown v. Board would have been decides as it was or not, and whether an issue as unpopular as same-sex marriage would be established by a SCOTUS decision, not that there's anything wrong with that. Would Roe have been decided the way it was? I doubt it.

I also think that the justices' awareness would have to extend beyond the coasts and academia, which seems to be where it is now.

I completely agree that the Supreme Court is different. I would not, at least at first, endorse on the federal level the kind of contested partisan elections that work so well in Texas. In fact, I'm not sure we want to start this federal experiment at the top -- it might be best to start with retention elections for district judges. All of this would require a constitutional amendment (which makes it extremely unlikely), but it is clear that the view of the founders that the federal courts would be extremely limited in their powers, and therefore few limits were necessary, has turned out to be incorrect.

This error is not necessarily due to the mistakes of the founders in their understanding of the document, but may be instead the result of too much faith in the restraint of the human beings who fill the judiciary.

As for the respect for the federal judiciary, I suspect it has almost as much to do with the national scope of the law and the national scope of the professoriate and the media as it does with the method of selection. I do concede, however, that the certainty of lifetime appointment makes it easier to recruit the very best candidates than does the uncertainty of elections (not unlike tenure). The personality types that are willing (and able) to campaign are different from academics, by and large. I concede that we might get less able judges -- but the trade-off is that we would have judges we could remove, who might therefore be more inclined to exercise restraint.

Today the 8th circuit, en banc on remand, decided White v Mn GOP, saying that if we are going to elect judges, they get to actually campaign for office.As someone who has run for judge, i think that's a good thing.arbitrary aardvark